IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-31296 c/w

Nos. 13-31299, 13-31302

IN RE: DEEPWATER HORIZON

------------------------------------------------------------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,

 Plaintiffs

PLAINTIFFS’ STEERING COMMITTEE,

 Appellee

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

PRODUCTION COMPANY; BP, P.L.C., 

 Defendants–Appellants

v.

SEALED APPELLEES,

 Claimants–Appellees

Appeals from the United States District Court 

for the Eastern District of Louisiana

Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

May 8, 2015

Lyle W. Cayce

Clerk

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In these consolidated cases, BP Exploration & Production, Inc., BP 

America Production Company, and BP p.l.c. (collectively “BP”) appeals three 

Deepwater Horizon-related settlement awards it paid to nonprofits through its 

Court-Supervised Settlement Program (CSSP). The district court denied

discretionary review of these three awards even though BP argued that the 

Claims Administrator improperly interpreted the Settlement Agreement (the 

Agreement). The awards were based on the Claims Administrator’s 

determination that nonprofits may count donations and grants as “revenue”

under the terms of the Agreement (the Nonprofit-Revenue Interpretation). BP 

argues that 1) the Nonprofit-Revenue Interpretation violates the terms of the 

Agreement, 2) the Nonprofit-Revenue Interpretation puts the class settlement 

in violation of Rule 23 and Article III, and 3) even if the Nonprofit-Revenue 

Interpretation is upheld, each of these three awards is improper. We affirm the 

district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the class action settlement of civil claims arising 

from the Deepwater Horizon oil spill. The Settlement Agreement negotiated by 

the parties and approved by the district court established the CSSP, through 

which class members can submit claims. 

A. The Claims-Administration Process

The CSSP is managed by the Claims Administrator. After a claim 

determination has been made, BP or the claimant may appeal to an Appeal 

Panel.1 A party may then appeal the Appeal Panel’s determination to the 

district court of Judge Barbier in the Eastern District of Louisiana, which has 

1 Appeals of less than $1 million are heard by a single Appeal Panelist.

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discretion to hear such appeals. Pursuant to a district court order of May 20, 

2013, denials of discretionary review are not docketed.2 Rather, the district 

court gives notice to the parties and posts decisions on the CSSP website. 

The Settlement Agreement expressly includes nonprofits in the 

definition of entities who may recover pursuant to the settlement. The awards 

at issue were granted under the Business Economic Loss (BEL) framework. To 

recover under the BEL framework, a claimant must fall within one of twelve 

“Damage Categories” listed in § 1.3 of the Agreement. The Sealed Claimants 

recovered under the Economic Damage Category, which is summarized as 

encompassing “[l]oss of income, earnings or profits suffered by Natural Persons 

or Entities as a result of the DEEPWATER HORIZON INCIDENT.” To recover 

in this category, a claimant must meet one of the “causation requirements” in 

Exhibit 4B of the Agreement. Claimants can establish causation by showing 

various “revenue patterns.” If a claimant can show one of these revenue 

patterns, its compensation award is calculated under Exhibit 4C’s 

“compensation framework”; compensation is based on a comparison of its preand post-spill revenue. 

B. The Claims Administrator’s “Revenue” Interpretation

This appeal stems from the Claims Administrator’s interpretation of 

“revenue” as it is used in Exhibits 4B and 4C of the Agreement. On November 

30, 2012, the Claims Administrator determined that for nonprofit entities 

“grant monies or contributions shall typically be treated as revenue for the 

purposes of the . . . settlement agreement.” BP challenged this interpretation 

2 BP appealed this order in a related case (the Final Rules appeal), also decided today,

and we ordered the district court to begin docketing the denials of discretionary review. See 

In re Deepwater Horizon, No. 13-30843 (5th Cir. 2015). 

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in the district court, and the court affirmed the Claims Administrator on 

December 12, 2012, via an email to the parties. BP never directly appealed this 

decision. After the Nonprofit-Revenue Interpretation went into effect, the 

Sealed Claimants, each a nonprofit organization, counted donations and grants 

as revenue in their calculations, and received awards through the CSSP. 

• The Claimant in No.13-31296 (the Cy Pres Claimant) 

counted as revenue $331,395 in cy pres funds from a class 

action settlement.

• The Claimant in No.13-31299 (the Grant Claimant) counted 

as revenue its receipt of a large, one-time “Trust Grant.” 

• The Claimant in No. 13-31302 (the Legal-Services Claimant) 

included $157,500 in revenue that was based on “legal 

services performed by its legal fellows.”

BP appealed the awards all the way to the district court, which denied its 

motion for discretionary review. BP now appeals these denials of discretionary 

review.3

II. LEGAL BACKGROUND

This is the fifth appeal we have heard arising out of this class action 

settlement, and many of the issues presented relate to our earlier Deepwater 

Horizon decisions. Thus, we begin with a brief overview of the relevant portions 

of those cases.

A. Deepwater Horizon I

In In re Deepwater Horizon (Deepwater Horizon I), 732 F.3d 326 (5th Cir. 

2013), BP appealed a district court order affirming the Claims Administrator’s 

interpretation of the terms “revenue” and “expenses” in the Agreement. Id. at 

3 Also before the Court are BP’s motion to supplement the record and file the 

supplemental record under seal, the Grant Claimant’s motion to dismiss, and Class Counsel’s 

motion to dismiss. The motion to supplement the record and file the supplemental record 

under seal is GRANTED, and both motions to dismiss are DENIED.

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331. This case centered on a dispute about accounting standards. In a Policy 

Announcement, the Claims Administrator stated that these terms 

encompassed only cash payments and disbursements, consistent with the cashaccounting method. Id. at 334. BP disagreed and argued that the Agreement 

was to be governed instead by the accrual-accounting method, which requires 

matching of revenues and expenditures, and therefore the order allowed 

claimants to recover for inflated or nonexistent losses. Id. at 331–34. We

remanded to the district court for further proceedings on this contractinterpretation question. Id. at 339. 

B. Deepwater Horizon II

BP next challenged the class certification as violating Federal Rule of 

Civil Procedure 23 and Article III of the Constitution. In re Deepwater Horizon 

(Deepwater Horizon II), 739 F.3d 790, 795 (5th Cir. 2014). At issue in 

Deepwater Horizon II was the district court’s affirmance of two Claims 

Administrator Policy Announcements that interpreted Exhibits 4B and 4C of 

the Agreement. Id. at 795–96. The Claims Administrator determined that 

Exhibit 4B, which sets forth various causation requirements for claimants, did 

not require any further proof of causation once a claimant had met one of the

4B criteria. Id. at 797. The Claims Administrator also determined that Exhibit 

4C, which provides the formula to calculate payments for BEL claimants, 

allowed the Claims Administrator to use the cash or accrual method of 

accounting in the calculation. Id. 

BP argued that these interpretations broadened the class to include 

members whose injuries were not caused by the oil spill, in violation of Article 

III and Rule 23. Id. at 798–99. We noted that the Fifth Circuit had not 

addressed the standard for Article III standing at the class-certification stage 

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and that other circuits are split between two tests. Id. at 800–02. We held that 

the Agreement passed both tests and therefore declined to decide which 

approach was correct. Id. at 813. We also rejected BP’s numerous arguments

that the Policy Announcements included class members with no injury and 

therefore violated Rule 23. Id. at 812–21. 

C. Deepwater Horizon III

The third appeal arose from our remand in Deepwater Horizon I. In re 

Deepwater Horizon (Deepwater Horizon III), 744 F.3d 370, 373–74 (5th Cir. 

2014), cert. denied 135 S. Ct. 754 (2014). On remand, “the district court held 

that the Settlement Agreement requires matching of revenues and expenses,” 

as BP had originally argued. Id. However, the district court rejected BP’s newly 

briefed argument—that the Claims Administrator’s refusal to require specific 

evidence of causation violated Article III and Rule 23. Id. at 374. Whereas 

Deepwater Horizon II addressed the certification of the class, Deepwater 

Horizon III “decide[d] . . . whether the implementation of the Settlement 

Agreement is defective.” Id. at 375. In spite of the decision in Deepwater 

Horizon II, BP again argued that any interpretation or implementation of the 

Agreement that does not require proof of causation “reanimates” the Article III 

and Rule 23 issues decided in that case. Id. at 376. BP sought reversal of the 

district court’s ruling and an injunction preventing payment of claims to 

entities without evidence of causation. Id. at 373. We affirmed the district 

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court’s order, denied the injunction, and held that we were bound by our

Deepwater Horizon II rulings on Rule 23 and Article III. See id. at 375–78.

III. JURISDICTION

We have jurisdiction over this appeal under the collateral-order 

doctrine.4 The three denials of discretionary review at issue “‘(1) conclusively 

determine the disputed question, (2) resolve an important issue completely 

separate from the merits of the action, and (3) [are] effectively unreviewable 

on appeal from a final judgment,’” Henry v. Lake Charles Am. Press, L.L.C., 

566 F.3d 164, 171 (5th Cir. 2009) (quoting Coopers & Lybrand v. Livesay, 437 

U.S. 463, 468 (1978)); see also Montez v. Hickenlooper, 640 F.3d 1126, 1129, 

1132–33 (10th Cir. 2011) (finding appellate jurisdiction over a district court’s

collateral order affirming a special master’s denial of an individual claim under 

a consent-decree dispute-resolution mechanism). The district court’s refusal to 

review these three awards purported to conclusively determine the amount 

each nonprofit was to recover under the Agreement. The Nonprofit-Revenue 

Interpretation is “completely separate from the merits of BP’s liability for the 

oil spill,” Deepwater Horizon I, 732 F.3d at 332 n.3. And the order would be 

effectively unreviewable if BP had to wait until the settlement of the entire 

class action, when awards “will have been distributed to potentially thousands 

of claimants and BP will have no practical way of recovering these funds should 

it prevail.” Id.

4 Class Counsel and the Sealed Claimants argue that BP has waived its right to appeal 

individual awards under the terms of the Agreement. In the Final Rules appeal, we disagreed 

and held that BP had not waived its right to appeal individual awards. See In re Deepwater 

Horizon, No. 13-30843 (5th Cir. 2015).

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A. Timeliness

We now turn to Appellees’ arguments that these appeals are untimely 

under Federal Rule of Appellate Procedure 4. Rule 4(a)(1)(A) requires the 

notice of appeal to be filed “with the district clerk within 30 days after entry of 

the judgment or order appealed from.” Timely notice of appeal is a mandatory 

prerequisite for this Court’s appellate jurisdiction. Resident Council of Allen 

Parkway Vill. v. U.S. HUD, 980 F.3d 1043, 1048 (5th Cir. 1993).

Appellees present two timeliness arguments. First they argue that by 

failing timely to appeal the December 12, 2012 order affirming the NonprofitRevenue Interpretation, BP has effectively waived its general argument that 

the Interpretation violates the Agreement—as opposed to its specific 

challenges to the individual awards to the Sealed Claimants. In the 

alternative, they argue that the appeals of the district court’s denials of 

discretionary review are untimely because Rule 4’s thirty-day period should 

run from the time the order was sent to the parties, not from the time it was 

entered into the docket by BP.

1. The December 12 Order

Appellees argue that the Court lacks jurisdiction over this appeal 

because BP did not appeal the district court’s December 12 order affirming the 

Nonprofit-Revenue Interpretation within thirty days of its docketing. They 

contend that BP is effectively appealing the December 12 order because it is 

challenging the Nonprofit-Revenue Interpretation. When the Interpretation 

was released, BP challenged it in the district court; the district court upheld 

the Interpretation in the December 12 order emailed to the parties. BP never 

filed a direct appeal of the order, instead waiting to appeal the specific awards 

to the three Sealed Claimants. By failing to appeal this determination, 

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Appellees contend, BP has waived any argument that the Nonprofit-Revenue 

Interpretation is incorrect. 

In support of this argument, Appellees cite our decision in Medical 

Center Pharmacy v. Holder, 634 F.3d 830 (5th Cir. 2011). In that case, a group 

of pharmacies sued for declaratory and injunctive relief from certain FDA 

regulations. Id. at 832. After the district court granted summary judgment to 

the plaintiffs, the FDA appealed, and we reversed. Id. at 832–33. On remand, 

the FDA presented an argument that it did not raise in its summary-judgment 

appeal and the district court entered judgment for the FDA. Id. at 834. On 

appeal, we held that the FDA had waived its argument by failing to raise it in

the first appeal. Id. at 834–36.

Here, BP did not waive its challenge of the awards to the Sealed

Claimants by failing to appeal the December 12 order. It is well established 

that parties are not required to appeal interlocutory orders. See In re Chicken 

Antitrust Litig. Am. Poultry, 669 F.2d 228, 236 (5th Cir. 1982) (“Making 

interlocutory appeals mandatory . . . would turn the policy against piecemeal 

appeals on its head.”); Caradelis v. Reinferia Panama, S.A., 384 F.2d 589, 591 

n.1 (5th Cir. 1967) (“[Appellant] lost no rights by failing to take such an 

[interlocutory] appeal.”). Appellees’ reliance on Medical Center Pharmacy is 

misplaced; in that case, the party failed to raise an argument in its first appeal 

from a final judgment. 643 F.3d at 835–36. The December 12 order affirming 

the Nonprofit-Revenue Interpretation was not a final judgment. See Deepwater 

Horizon I, 732 F.3d at 332 n.3. Thus, BP did not forfeit its right to appeal the 

nonprofit awards to the Sealed Claimants by failing to first appeal the 

December 12 order. See Matherne v. Wilson, 851 F.2d 752, 756 n.9 (5th Cir. 

1988) (“[O]n principle, the interlocutory appeal is permissive, not mandatory, 

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and a party does not forfeit a right to appeal after judgment for failure to 

appeal interlocutorily.” (citing 9 Moore’s Federal Practice ¶ 110.8 (1986))).

2. The Denials of Review

Next we turn to Appellees’ alternative argument that this appeal is 

untimely because BP did not appeal the awards to the Sealed Claimants within 

thirty days of the district court’s denials of BP’s motions for discretionary 

review. Pursuant to the district court’s May 20 order, denials of discretionary 

review were not docketed. Rather, notice was given to the parties and decisions 

were posted on the CSSP website. The district court denied BP’s motion for 

discretionary review in each case on September 4, 2013. On December 16, 2013, 

100 days later, BP filed its notices of appeal with the denials of review

attached. 

Appellees assert that Rule 4’s thirty-day limit should run from the day 

that the parties received notice of the denials of BP’s motions for discretionary 

review via the CSSP website. Otherwise, Class Counsel argues, BP can “create 

federal appellate rights by docketing non-litigation material whenever it 

pleases.” BP responds that these appeals are timely because they were filed

the same day that the district court’s orders were entered into the docket. See 

Fed. R. App. P. 4 (“[T]he notice of appeal must be 30 days after entry of the . . . 

order appealed from.” (emphasis added)). BP challenges Appellees’ equitable 

argument because the delay was caused by the May 20 order, which denied 

BP’s request to have such decisions entered into the docket, rather than by any 

bad faith on BP’s part.

We agree with BP. Rule 4’s plain language makes clear that the thirty 

days run from the entry of the order. Rule 4(a)(7) explains that an order is

“entered” when “the judgment or order is entered in the civil docket.” Appellees’

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equitable arguments are also unavailing; it was the district court’s order, and 

not BP’s conduct, that disadvantaged the parties, because undocketed orders 

are unappealable. See In re Am. Precision Vibrator Co., 863 F.3d 428, 429 (5th 

Cir. 1989).5 Thus, we hold that BP’s appeals are timely, we have jurisdiction, 

and therefore proceed to the merits of the appeals.

IV. DISCUSSION

The interpretation of a settlement agreement is a question of contract 

law that this Court reviews de novo. Deepwater Horizon III, 744 F.3d at 374 

(citing Waterfowl L.L.C. v. United States, 473 F.3d 135, 141 (5th Cir. 2006)).

The Agreement gives the district court discretion to decide whether it will 

review an award at all. Thus, the district court’s denials of review are reviewed 

for abuse of discretion. See Wilton v. Seven Falls Co., 515 U.S. 277, 289–90 

(1995) (applying an abuse-of-discretion standard to a district court’s decision 

to entertain a declaratory-judgment action). However, the standard of review 

is effectively de novo because the district court was presented with purely legal 

questions of contract interpretation. See United States v. Delgado–Nuñez, 295 

F.3d 494, 496 (5th Cir. 2002) (“[A]buse of discretion review of purely legal 

questions . . . is effectively de novo because ‘[a] district court by definition 

abuses its discretion when it makes an error of law.’” (second alteration in 

original) (quoting Koon v. United States, 518 U.S. 81, 100 (1996))). 

5 Pursuant to our opinion in the Final Rules appeal, the district court will now have 

to docket its decisions on individual awards. See In re Deepwater Horizon, No. 13-30843 (5th 

Cir. 2015). Therefore, BP will no longer be able to start the thirty-day clock whenever it 

chooses to file its notice of appeal. We reiterate here that we do not endorse BP’s approach in 

future cases.

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A. Plain-Language Challenges to the Nonprofit-Revenue 

Interpretation

This appeal concerns the Claims Administrator’s interpretation of 

“revenue” as it is used in the BEL framework of the Agreement. BP first 

challenges the Nonprofit-Revenue Interpretation as inconsistent with the 

terms of the Agreement. Under general maritime law,6 a court interprets, “to 

the extent possible, all the terms in a contract without rendering any of them 

meaningless or superfluous.” Chembulk Trading LLC v. Chemex Ltd., 393 F.3d 

550, 555 (5th Cir. 2004).

1. The Language of Exhibits 4B and 4C

BP’s contract-interpretation arguments scrutinize the language of 

Exhibit 4B, the causation requirements, and Exhibit 4C, the compensation 

framework. 

a. “Business revenue”

BP argues that “revenue” cannot mean donations and grants. To support 

its argument, BP first points toward Exhibit 4B, the causation requirements

for claimants. A BEL claimant must meet one of the listed criteria to be eligible 

to recover under the Agreement.7 The term “business revenue” appears four 

times in Exhibit 4B. In each instance, the clause “Total business revenue shows 

the following pattern” introduces a specific revenue pattern that claimants can 

use to establish causation. 

BP argues that grants and donations are not “business revenue.” This 

argument is based on two dictionaries that define “business” as “commercial” 

6 The Agreement provides that it “shall be interpreted in accordance with General 

Maritime Law.” 7 Not all claimants must meet one of the causation criteria; Exhibit 4B first lists 

groups of claimants that are exempt. 

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activity carried on “for profit,” Black’s Law Dictionary 226 (9th ed. 2009), or 

“as a means of livelihood,” Webster’s Third New International Dictionary 302 

(1976). By using the phrase “business revenue,” BP contends, “the agreement 

plainly does not contemplate awards for lost grants and donations to non-profit 

entities.” 

This argument is unpersuasive. As the Amici point out, modern 

nonprofits are commercial entities that seek to generate cash surpluses. See 

Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 646 F.3d 983, 

987–88 (7th Cir. 2011) (“The commercial activity of nonprofits has grown 

substantially in recent decades, fueled by an increasing focus on revenue 

maximizing . . . . The principal difference between [for-profit and nonprofit] 

firm[s] is . . . that a nonprofit enterprise is forbidden to distribute any surplus 

of revenues over expenses as dividends . . . .”). “Business,” as it is used to modify 

“revenue” in the causation requirements, could just as easily include, “[b]y 

extension, transactions or matters of a noncommercial nature.” Black’s Law 

Dictionary, supra; see also The American Heritage Dictionary 259 (3d ed. 1996) 

(defining business as, inter alia, “a specific occupation or pursuit”).

As Appellees note, BP’s interpretation conflicts with the Agreement’s 

explicit inclusion of nonprofits as entities that may recover. For if they may 

recover, then they must be able to calculate their loss by taking into account 

their primary sources of income. In a footnote, BP argues those nonprofits that 

“engage in business activities involving commercial transactions,” such as a 

museum operating a gift shop, could use those commercial revenues to meet 

the BEL causation criteria. But if a museum’s gift-shop receipts are “business 

revenue” but its donations are not, as BP suggests, the museum must be 

categorized as an entity engaged in commercial activity “for profit” in its gift 

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shop operation, but not in its operation of the museum generally. This hairsplitting is not a sensible construction of the Agreement. 

In light of the revenue-generating nature of modern nonprofits and the 

express inclusion of nonprofits as entities eligible for recovery under the BEL 

framework, we cannot extrapolate from the use of the word “business” an 

intent to limit “revenue” to funds obtained only through commercial, profitseeking activity.

b. “Profit” and “Earn” 

Next, BP argues that its interpretation of “revenue” is supported by 

language in Exhibit 4C, the compensation framework for BEL claimants. 

Exhibit 4C provides:

Step 1 – The compensation framework for business claimants 

compares the actual profit of the business during a defined postspill period in 2010 to the profit that the claimant might have 

expected to earn in the comparable post-spill period of 2010. . . . 

Step 1 compensation reflects the reduction in Variable Profit 

(which reflects the claimant’s revenue less its variable costs) over 

this period.

(emphasis added). BP argues that “revenue,” used here to calculate the 

“Variable Profit,” cannot include grants and donations because they do not 

relate to the “profit of a business.” This is because profits are, according to 

Black’s, “[t]he excess of revenues over expenditures in a business transaction,” 

and, BP asserts, contributions are “plainly not the result of business 

transactions.”

BP further challenges the Nonprofit-Revenue Interpretation because 

Exhibit 4C aims to allow recovery of “profit the claimant might have expected 

to earn.” Again quoting Black’s, BP argues that contributions and grants are 

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not earned because they are not “acquire[d] by labor, service, or performance,” 

Black’s Law Dictionary 584 (9th ed. 2009). 

BP’s profit argument relies on the assumption that nonprofits are not 

“businesses” in the “commercial, for-profit” sense. Yet BP offers no support for 

its assertion that gratuitous contributions and grants are not the result of 

business transactions. Black’s, from which BP borrows its definition of “profit”

and “earn,” defines “business transaction” as “[a]n action that affects the 

actor’s financial or economic interests, including the making of a contract.” 

Black’s Law Dictionary 241 (10th ed. 2014). When a nonprofit obtains a grant, 

fundraises, or accepts donations, its actions affect its financial and economic 

interests. 

BP oversimplifies the work of nonprofits when it claims that they do not 

earn their revenue. Appellees and the Amici explain that nonprofits have to 

work to get contributions and improve their bottom line in order to keep their 

doors open.8 Thus, the fact that Exhibit 4C seeks to compensate for “profit[s] 

the claimant[s] might have expected to earn,” does not conflict with the 

Nonprofit-Revenue Interpretation. 

c. “Sales”

Next, BP contends that the Nonprofit-Revenue Interpretation renders 

Exhibit 4C’s use of the word “sales” meaningless. Exhibit 4C provides:

Step 2 – Compensates claimants for incremental profits or losses 

the claimant might have been expected to generate in the absence 

of the spill relative to sales from the Benchmark Period. This 

calculation reflects a Claimant-Specific Factor that captures 

8 As one Amicus observes, “[w]ith more than $1 billion in revenue from grants and 

donations in the Louisiana health and human service not-for-profit sector alone, it comes as 

no surprise that not-for-profit corporations strive year after year to improve their services 

and programming to attract donors.”

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growth or decline in the pre-spill months of 2010 compared to the 

comparable months of the Benchmark Period and General 

Adjustment Factor. 

(emphasis added). The Claimant-Specific Factor (CSF) is calculated using the 

claimant’s “total revenue” from certain pre- and post-spill time periods. 

Because revenue is a variable in the CSF calculation and the CSF is used to 

compensate for expected profits or losses “relative to sales,” BP argues that 

donations and grants cannot be included as revenue.

But if the term “sales” were given the meaning that BP advocates, then

for-profit service entities would be barred from claiming payments for services 

as revenue as well. For example, an attorney’s fees are not “sales,” yet an 

attorney could presumably include them as revenue in a BEL claim. Thus, BP’s 

“sales” argument not only excludes grants and donations, it also excludes 

payments that are well within the meaning of the contract. See Chembulk 

Trading LLC, 393 F.3d at 555 (“A basic principle of contract interpretation . . 

. is to interpret, to the extent possible, all the terms in a contract without 

rendering any of them meaningless or superfluous.” (emphasis added)).

BP’s arguments regarding the use of the terms “business revenue,” 

“profit of a business,” and “earn” are unpersuasive. Although the use of the 

term “sales” is difficult to reconcile with the Nonprofit-Revenue Interpretation, 

the weight BP gives to the term also causes problems for revenue that all 

parties would agree should be included. Thus, considering the terms of the 

contract as a whole, notably the explicit inclusion of nonprofits in the list of 

entities that may recover under the BEL framework, we find that the 

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Nonprofit-Revenue Interpretation does not conflict with the language of 

Exhibits 4B and 4C.9

2. The Language of Class Definition

Finally, BP argues that the Nonprofit-Revenue Interpretation “produces 

awards to claimants that are not class members.” BP highlights the summary 

description of the Economic Damage Category in § 1.3.1.2 of the Agreement: 

“Loss of income, earnings or profits suffered by Natural Persons or Entities as 

a result of the DEEPWATER HORIZON INCIDENT, subject to certain 

Exclusions.” 

BP argues that entities whose losses are based on “lost grants, donations, 

and similar receipts—as distinguished from lost profits from commercial 

transactions—are not encompassed” within this category. First, BP cites to the 

“Facts and Proceedings” section of Deepwater Horizon I, in which we explained 

that claimants in this category “must have conducted commercial activities in 

the Gulf Coast region during the relevant period.” 732 F.3d at 329–30. From 

this BP concludes that nonprofits whose damages are based “solely on 

gratuitous grants and other unearned awards” cannot join the class because 

they do not engage in commercial activities.

This argument is unavailing. BP attempts to use our mention of 

“commercial activities” in the facts section of a case that did not address the 

nonprofit issue to contradict the Claims Administrator’s determination. But 

9 BP also argues that a recent Claims Administrator interpretation barring most forprofit claimants from counting grants as revenue shows that the interpretation being 

appealed is incorrect. BP asserts that a Claims Administrator interpretation released on 

April 24, 2014, states that “‘grants for ‘for-profit’ entities’ ‘shall not typically be treated as 

‘revenue’ for purposes of the various calculations to be performed under the terms of the 

Agreement with regard to entities asserting [BEL] claims.’” However, this document is not 

contained in the record or in BP’s supplemental record; thus we do not consider it.

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even if our language could be read as a binding summation of the Agreement’s 

terms, BP has failed to show that nonprofits that operate on donation and 

grant funding are not engaged in commercial activity. See supra Part 

IV(A)(1)(a). Ultimately, BP fails to show that the Nonprofit-Revenue 

Interpretation violates the language of the Agreement.

B. Article III and Rule 23 Challenges to the Nonprofit-Revenue 

Interpretation

We now turn to BP’s Rule 23 and Article III challenges. BP argues that 

many of the Article III and Rule 23 issues raised in Deepwater Horizon II are 

“reanimated” because the Nonprofit-Revenue Interpretation “‘abandons’ a 

fundamental premise of the agreement and class definition.” BP does not seek 

decertification of the class on these grounds; rather BP argues that the 

Interpretation renders the Agreement illegal and, therefore, cannot be 

accepted. See Walsh v. Schlecht, 429 U.S. 401, 408 (1977) (“[A]mbiguously 

worded contracts should not be interpreted to render them illegal and 

unenforceable where the wording lends itself to a logically acceptable 

construction that renders them legal and enforceable.”). We disagree and hold 

that the Nonprofit-Revenue Interpretation does not place the Agreement in 

violation of Rule 23 or Article III because the Interpretation does not alter our 

analysis in Deepwater Horizon II.

1. Rule 23

In Deepwater Horizon II, BP challenged class certification on numerous 

Rule 23 grounds following the district court’s affirmance of a different Claims 

Administrator determination. 739 F.3d at 796. The Claims Administrator 

determined the Agreement does not require claimants to provide proof of 

causation provided they meet one of the causation criteria enumerated in 

Exhibit 4B. Id. at 797–98. There, BP argued that this determination put the 

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class certification in violation of numerous provisions of Rule 23. Id. at 799. All 

of these arguments rested on the “same central premise . . . that a class cannot 

be certified when it includes persons who have not actually been injured.” Id.

at 808. Nevertheless, we held that certification was proper. Id. at 821. 

a. Adequacy

Rule 23(a)(4) requires that “the representative parties will fairly and 

adequately protect the interests of the class.” “The adequacy inquiry . . . serves 

to uncover conflicts of interest between named parties and the class they seek 

to represent.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). Class 

representatives must “‘be part of the class and possess the same interest and 

suffer the same injury as the class members.’” Id. (quoting E. Tex. Motor 

Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)).

BP argues that under the Nonprofit-Revenue Interpretation the class 

representatives are no longer “adequate.” BP characterizes our opinion in

Deepwater Horizon II as a “recogni[tion] that the district court’s adequacy 

determination was based on its conclusion that the class representatives 

‘included individuals and businesses asserting each category of loss,’” and 

asserts “[t]hat is not so if the class includes non-profit entities that incurred no 

business loss.” (quoting Deepwater Horizon II, 739 F.3d at 812–13). 

Even if we assume BP is correct that the Nonprofit-Revenue 

Interpretation allows entities without business loss to enter the class, our 

reasoning in Deepwater Horizon II still governs this appeal. We upheld the 

district court’s adequacy determination, even accepting BP’s argument that 

the class included individuals with no loss at all. 739 F.3d at 802. We did so 

because, “in the context of Rule 23 requirements, ‘[c]lass certification is not 

precluded simply because a class may include persons who have not been 

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injured by the defendant’s conduct.’” Id. at 813 (alteration in original) (quoting 

Mims v. Stewart Title Guar. Co., 590 F.3d 298, 308 (5th Cir. 2009)). BP has 

simply resurrected its failed adequacy argument from Deepwater Horizon II, 

and we remain bound by our previous determination that the class satisfies 

Rule 23(a)(4). See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th 

Cir. 2008).

b. Commonality and typicality

Next, BP argues that the Nonprofit-Revenue Interpretation violates 

Rule 23’s requirement that there be “questions of law or fact common to the 

class.” Fed. R. Civ. P. 23(a)(2). As was the case in Deepwater Horizon II, BP’s 

commonality argument rests entirely on an out-of-context quotation from WalMart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), that commonality requires 

that class members “have suffered the same injury.”10 Id. at 2551 (internal 

quotation marks omitted). 

In Wal-Mart, the Court stated: 

Commonality requires the plaintiff to demonstrate that the class 

members ‘‘have suffered the same injury[.]” This does not mean 

merely that they have all suffered a violation of the same provision 

of law. Title VII, for example, can be violated in many ways—by 

intentional discrimination, or by hiring and promotion criteria 

that result in disparate impact, and by the use of these practices 

on the part of many different superiors in a single company. Quite 

obviously, the mere claim by employees of the same company that 

they have suffered a Title VII injury, or even a disparate-impact 

Title VII injury, gives no cause to believe that all their claims can 

productively be litigated at once. Their claims must depend upon a 

10 In Deepwater Horizon II we observed: “Based on this single sentence, [BP suggests] 

that either the diversity of the class members’ economic injuries or the inclusion of members 

who ‘have suffered no injury at all’ might preclude class certification. When quoted in its 

entirety, however, the relevant passage . . . demonstrates why both of these arguments are 

meritless.” 739 F.3d at 810.

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common contention—for example, the assertion of discriminatory 

bias on the part of the same supervisor. That common contention, 

moreover, must be of such a nature that it is capable of classwide 

resolution—which means that determination of its truth or falsity 

will resolve an issue that is central to the validity of each one of 

the claims in one stroke.

Id. (emphasis added) (citation omitted). In Deepwater Horizon II, we held that

the “same injury” requirement could “be satisfied by an instance of the 

defendant’s injurious conduct, even when the resulting injurious effects—the 

damages—are diverse.” 739 F.3d at 810–11. Thus, even assuming the 

Nonprofit-Revenue Interpretation allows recovery for class members with no 

business loss, it does not violate Rule 23(a)(2).11

c. Predominance

Next BP argues that the Nonprofit-Revenue Interpretation puts the 

class in violation of Rule 23(b)(3)12 because the damages calculation now 

“results in significant awards based on extraordinary one-time grants” and 

fails to “connect a claimant’s damages to the class theory of liability.” 

We have noted that “[c]lass treatment . . . may not be suitable [under 

Rule 23(b)(3)] where the calculation of damages is not susceptible to a 

mathematical or formulaic calculation, or where the formula by which the 

parties propose to calculate individual damages is clearly inadequate.” Bell Atl. 

Corp. v AT&T Corp., 339 F.3d 294, 307 (5th Cir. 2003); see also Steering Comm. 

11 Based on its commonality argument, BP also contends that the class fails to meet 

Rule 23(a)(3)’s typicality requirement “since ‘[t]he commonality and typicality requirements 

of Rule 23(a) tend to merge.’” (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 14, 157 n.13 

(1986)). This too is a failed argument resurrected from Deepwater Horizon II, and we again 

reject it. See 739 F.3d at 812 n.92.

12 This Rule requires that “the court find[] that the questions of law or fact common to 

class members predominate over any questions affecting only individual members.” Fed R. 

Civ. P. 23(b)(3).

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v. Exxon Mobil Corp., 461 F.3d 598, 602 (5th Cir. 2006) (“[W]here individual 

damages cannot be determined by reference to a mathematical or formulaic 

calculation, the damages issue may predominate over any common issues 

shared by the class.”). 

Yet, “it is indeed ‘possible to satisfy the predominance . . . requirements 

of Rule 23(b)(3) in a . . . mass accident class action’ despite the particular need 

in such cases for individualized damages calculations.” Deepwater Horizon II, 

739 F.3d at 816 (quoting Exxon Mobil Corp., 461 F.3d at 603). This is the case 

“when a district court performs a sufficiently ‘rigorous analysis’ of the means 

by which common and individual issues will be divided and tried.” Id. (quoting

Madison v. Chalmette Ref., L.L.C., 637 F.3d 551, 556 (5th Cir. 2011)).

BP argues that the Agreement’s formula does not meet these standards, 

and therefore fails the predominance inquiry. First, BP argues that the 

Nonprofit-Revenue Interpretation results in large awards where “evidence of 

actual damages is lacking,” which proves that the formula is “clearly 

inadequate,” Bell Atl. Corp, 339 F.3d at 307. Next, BP argues that the formula 

fails to “connect a claimant’s damages to the class theory of liability,” as 

required by Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013) (“[A] model 

purporting to serve as evidence of damages in [a class action based on one 

theory of liability] must measure only those damages attributable to that 

theory.”).

However, as we stated in response to BP’s similar arguments in

Deepwater Horizon II, these standards do not apply here, where the district 

court “did not list the calculation of the claimant’s damages either in its list of 

common questions of fact or in its list of common questions of law.” 739 F.3d at 

816 (footnotes and internal quotation marks omitted). Comcast “has no impact 

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on cases such as the present one, in which predominance was not based on 

common issues of damages but on numerous common issues of liability.” Id. at

815. We affirmed the district court’s predominance determination because it 

was based on common issues apart from the calculation of damages. See id. at 

816 (“But even without a common means of measuring damages, in the district 

court’s view, these common issues nonetheless predominated over the issues 

unique to individual claimants.”). 

Moreover, in Deepwater Horizon II we explicitly rejected the argument 

that the choice of “a formula for making voluntary payments under a 

settlement agreement could threaten the predominance of common questions 

over individual questions in litigation.” Id. at 818. Thus, even assuming BP’s 

assertion that the Nonprofit-Revenue Interpretation “awards damages with no 

connection to many class members’ causes of action,” we remain bound by our 

earlier predominance determination under our rule of orderliness. See Jacobs,

548 F.3d at 378.

d. Fairness

Next, BP contends that the Nonprofit-Revenue Interpretation violates 

Rule 23(e)’s fairness requirement. This rule is meant to protect the nonparty 

class members. Deepwater Horizon II, 739 F.3d at 820. BP argues that the 

Nonprofit-Revenue Interpretation permits entities with no colorable claim to 

recover, which results in claims that are not a “fair approximation” of their 

entitlement to relief, Reed v. Gen. Motors Corp., 703 F.2d 170, 175 (5th Cir. 

1983). However, we rejected a nearly identical argument in Deepwater Horizon 

II: 

BP’s argument ignores the six Reed factors altogether. Rather, BP 

relies on a short quotation from Reed to suggest that district courts 

should also ensure that settlement agreements are based on a “fair 

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approximation of [class members’] relative entitlement.” . . . No 

other decision by our court or by any district court has every cited 

Reed for such a proposition. Nor can any of the six Reed factors be 

easily related to the “fair approximation” analysis that BP 

proposes.

739 F.3d at 820 (alteration in original). Nothing in the Nonprofit-Revenue 

Interpretation or BP’s briefs changes our analysis now.

e. Ascertainability

Lastly, BP argues that the Nonprofit-Revenue Interpretation violates 

Rule 23’s ascertainability requirement. To satisfy this requirement, “‘the class 

sought to be represented must be adequately defined and clearly 

ascertainable.’” Deepwater Horizon II, 739 F.3d at 821 (quoting Union Asset 

Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012)). BP 

contends that the Nonprofit-Revenue Interpretation “eliminates any rational 

demarcation between legitimate and illegitimate claimants” by permitting 

recovery to individuals without “Business Economic Loss.” 

In Deepwater Horizon II, we rejected BP’s nearly identical argument that 

the Claims Administrator’s “two Policy Announcements render[ed] the class

definition irrational and therefore violate[d] the ascertainability requirement.” 

739 F.3d at 821. This conclusion was based on our prior decision that “‘the 

possibility that some [claimants] may fail to prevail on their individual claims 

will not defeat class membership’ on the basis of the ascertainability 

requirement.” Id. (alteration in original) (quoting In re Rodriguez, 695 F.3d 

360, 370 (5th Cir. 2012)). Even assuming, as BP does, that the Interpretation 

permits recovery for individuals with no “business loss,” we remain bound by 

our ascertainability determination from Deepwater Horizon II. See Jacobs, 548 

F.3d at 378.

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2. Article III Standing

BP argues that the Claims Administrator, by interpreting “revenue” to 

include grants and contributions to nonprofit entities, has altered the class 

definition to include entities with “no colorable claim of injury.” This violates 

Article III, BP argues, because the class now includes “a great many persons 

who have suffered no injury at the hands of [BP],” Kohen v. Pac. Inv. Mgmt. 

Co., 571 F.3d 672, 677 (7th Cir. 2009). 

Pursuant to Article III, a plaintiff must “allege (1) an injury that is 

(2) ‘fairly traceable to the defendant’s allegedly unlawful conduct’ and that is 

(3) ‘likely to be redressed by the requested relief.’” Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 590 (1992) (Blackmun, J., dissenting) (quoting Allen v. 

Wright, 468 U.S. 737, 751 (1984)). “As Lujan emphasized, however the 

standard used to establish these three elements is not constant, but becomes 

gradually stricter as the parties proceed through ‘the successive stages of the 

litigation.’” Deepwater Horizon II, 739 F.3d at 799. We have not directly 

addressed how “to evaluate standing for the purposes of class certification and 

settlement approval under Rule 23,” but other courts have taken two distinct 

approaches. Id. at 800.13

Under the first approach, courts look at the class definition to “ensure 

that absent class members possess Article III standing.” Id. at 801. The Second 

Circuit has presented the most common formulation of this standard: “We do 

not require that each member of a class submit evidence of personal standing. 

13 Although BP is not seeking decertification of the class in this appeal, it argues that 

implementing the Nonprofit-Revenue Interpretation results in a class that could not have 

been certified. Thus, we analyze this issue pursuant to the Rule 23-stage Article III standards 

utilized in Deepwater Horizon II, where class certification was at issue. See 739 F.3d at 799–

801. 

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At the same time, no class may be certified that contains members lacking 

Article III standing. The class must therefore be defined in such a way that 

anyone within it would have standing.” Denney v. Deutsche Bank AG, 443 F.3d 

253, 263–64 (2d Cir. 2006) (citations omitted). This standard “does not require 

that each member of a class submit evidence of personal standing, so long as 

every class member contemplated by the class definition can allege standing.” 

Deepwater Horizon II, 739 F.3d at 804 (internal quotation marks omitted).

Under the second, more permissive standard, courts look to whether the 

named plaintiffs or class representatives have standing, “ignor[ing] the absent 

class members entirely.” Id. at 800 (citing Lewis v. Casey, 518 U.S. 343, 395–

96 (1996) (Souter, J., concurring in part, dissenting in part, and concurring in 

the judgment)). In Kohen v. Pacific Investment Management Co., 571 F.3d 672 

(7th Cir. 2009), the Seventh Circuit took this approach, reasoning that, 

although it “is true . . . that a class will often include persons who have not 

been injured by the defendant’s conduct,” such an “inevitability does not 

preclude class certification.” Id. at 677. This is because at the class-certification 

stage, “many of the members of the class may be unknown, or if they are known

still the facts bearing on their claims may be unknown.” Id. 

In Deepwater Horizon II we did not adopt either test because we found 

that the Agreement satisfied both. See 739 F.3d at 798–802. Applying the 

Denney test, we noted that the class definition limited the Economic Damage 

Category to claims based on “‘[l]oss of income, earnings or profits suffered . . . 

as a result of the DEEPWATER HORIZON INCIDENT.’” Id. at 803 (alteration 

in original). Even looking beyond this definition paragraph to the entire 

Amended Complaint, we reasoned, “the result would be no different” because 

the complaint “include[d] numerous allegations of injuries to the absent class 

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members.” Id. Thus “every class member contemplated by the class definition 

‘can allege standing.’” Id. at 804 (quoting Deepwater Horizon I, 732 F.3d at 

340–42). Additionally, we found class standing under the more permissive

Kohen test, which focuses on the standing of the named plaintiffs. Id. at 803. 

This was because “each one of the[] named plaintiffs . . . identified an injury in 

fact that is traceable to the oil spill.” Id. at 803.

BP argues that the class now fails both of these tests because “the class 

definition has been altered to include numerous entities that have no colorable 

claim of loss.” Under the Denney test, BP contends, the class is no longer 

“defined in such a way that anyone within it would have standing,” Denney, 

443 F.3d at 264. Next BP argues that “even under the [Kohen] standard, ‘a 

class should not be certified if it . . . contains a great many persons who have 

suffered no injury at the hands of the defendant,” and the class now contains 

“an entire set of entities whose claims are based only on gratuitous 

contributions and that have no colorable claim of injury.” 

However, BP does not explain how the Nonprofit-Revenue Interpretation

allows entities to recover for injuries that were not caused by BP’s conduct. BP 

merely states that the Claims Administrator “has issued awards to nonprofit 

entities based on receipts that cannot qualify as ‘revenue,’ and thus awards are 

being issued to entities that have no colorable claim of injury.” But whether 

contributions should qualify as “revenue” under the Agreement is irrelevant to 

the causal connection between BP’s conduct and decreases in contributions to 

nonprofits. Moreover, Amici for Appellees cite to numerous sources showing 

how nonprofits are often harmed by calamities because “first, those affected by 

the calamity tend to slow their giving . . . and, second, donors shift their giving 

to those impacted directly by the disaster.”

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We hold that the Nonprofit-Revenue Interpretation does not alter the 

class definition in violation of Article III. In Deepwater Horizon II, this Court 

found that the Agreement satisfied standing requirements for class 

certification. Here, BP has failed to show how treating contributions and 

donations as revenue results in a class of individuals with no colorable claim 

of injury. 

C. Challenges to the Individual Awards

In each of the consolidated cases, BP argues that even if the NonprofitRevenue Interpretation is permissible, the individual award given to each 

Sealed Claimant violates the language of the Claims Administrator’s own 

interpretation of the Agreement. We address each award in turn.

1. Cy Pres Award, No. 13-31296

The Cy Pres Claimant received $331,395 in cy pres funds from a class 

action settlement. This “extraordinary” award, according to the organization’s 

director, was the largest single donation in the organization’s history. BP 

argues that treating this windfall as “revenue” violates the Nonprofit-Revenue 

Interpretation, which states that “grant monies or contributions shall typically

be treated as revenue,” because this was a “one-time, extraordinary award.” To 

hold otherwise, BP argues, would “read the word ‘typically’ out of the NonProfit Policy.” 

The Cy Pres Claimant responds that it would characterize every 

donation it receives as a “‘one-time, extraordinary payment’ because there is 

no guaranty that any donation will be made or that any other donation will 

follow.” BP’s position, the Claimant argues, means that any unusually sized 

donation should be excluded from “revenue.” This “makes little sense as a 

matter of practical reality. Non-profit entities receive many donations that are 

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one-time donor payments” resembling this cy pres donation. Finally, the 

Claimant notes the increasing frequency with which courts distribute cy pres 

awards in class action lawsuits to argue that this is not a “novel” source of 

revenue for nonprofit corporations. See Martin H. Redish et al., Cy Pres Relief 

and the Pathologies of the Modern Class Action: A Normative and Empirical 

Analysis, 62 Fla. L. Rev. 617, 653 (2010) (“[T]he use of class action cy pres 

awards by federal courts has increased since the 1980s and has accelerated 

sharply after 2000.”).

We see no reason why “revenue” should be read to exclude donations 

simply because they were given by a court rather than a donor. The NonprofitRevenue Interpretation does not say that “typical donations” count as revenue;

rather it says that “grant monies or contributions shall typically” count as 

revenue. “Typically” is not rendered meaningless by the inclusion of cy pres 

donations.

Moreover, denying this award because of its size would open the 

floodgates to a flurry of challenges to nonprofit awards, undermining the aims 

of the CSSP. As the Appeals Panel noted in reviewing this award, the CSSP 

calculations look at revenue on a business level, not on a customer or donor 

level. Reading limitations into the meaning of “revenue” based on the identity 

of the donor runs contrary to this agreed-upon framework. Thus, we find no 

abuse of discretion in the denial of review of the award to the Cy Pres Claimant. 

2. Trust Grant, No. 13-31299

BP makes a similar argument regarding the Grant Claimant’s award, 

which was based on its receipt of a “Trust Grant.” BP argues that the inclusion 

of this “one-time, extraordinary receipt of grant money” distorted the 

Claimant’s CSF and bestowed a windfall on this Claimant. 

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The CSF is used in “Step 2” of the compensation framework to 

“compensate[] claimants for incremental profits or losses the claimant might 

have been expected to generate in the absence of the spill relative to sales from 

the Benchmark Period.” The CSF aims to “capture the impact of pre-[spill] 

trends in the claimant’s revenue performance that might have been expected 

in the post-[spill] Benchmark Period.” Essentially, the CSF is a revenue growth 

rate metric used to ensure that a business that was growing leading up to the 

spill will be adequately compensated. It is calculated by “comparing revenue 

received in the four months leading up to the spill to revenue received in those 

same four months in the Benchmark Period.” Thus, treating the Trust Grant 

as “revenue” increased the Grant Claimant’s CSF, and therefore its award.

BP argues that this improperly inflated the CSF because grants 

normally did not make up a large portion of the Grant Claimant’s revenue, yet 

this grant was “30% of Claimant’s 2010 gross receipts by itself.” BP argues that 

because the grant was “atypical,” it must be excluded to ensure that, in the 

language of Exhibit 4C, a claimant is compensated only “for incremental profits 

the claimant might have been expected to generate” in the post-spill period.14

In response, the Grant Claimant argues that BP is, “once again, trying 

to erect a causation test on appeal that does not exist in the Settlement 

Agreement and has already been resolved by this Court.” The Claimant 

contends that BP seeks to require each claimant, nonprofit or otherwise, to 

show that revenues from certain sources would have continued to come in 

14 BP also contends, as against the cy pres award, that this award should not be 

included as revenue because it is not “typical,” per the language of the Nonprofit-Revenue 

Interpretation. This argument is practically identical to that raised against the Cy Pres

Claimant, and for the reasons discussed in Part IV(C)(1), supra, it fails.

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absent the spill, thus “jettison[ing] the Settlement Agreements’ Compensation 

Frameworks for an ad-hoc system.” 

We agree with the Claimant. By seeking to exclude revenue because it is 

“atypical,” BP attempts to circumvent the causation requirements and 

compensation framework in the Agreement. BP now asks individual claimants 

to show that any revenue from the pre-spill period was of the type that they

could have expected to continue earning after the spill. But that amounts to 

requiring that Claimants prove that their lost revenue was caused by the spill, 

which is precisely what we refused to require in Deepwater Horizon II. See 739 

F.3d at 797, 821 (affirming the district court’s approval of the Claims 

Administrator’s statement that “the Settlement Agreement does not 

contemplate that the Claims Administrator will undertake additional analysis 

of causation issues beyond those criteria that are specifically set out in [Exhibit 

4B]”).

The parties agreed on Exhibit 4C’s compensation framework to establish 

what claimants might have expected to earn after the spill. To accept

challenges to the types of revenue included in those calculations because the 

claimants could not have expected to earn similar revenue after the spill 

defeats the purpose of the compensation framework itself. We therefore find 

no abuse of discretion in the district court’s denial of review of the award to the 

Grant Claimant.

3. Legal Services, No. 13-31302

Finally, BP challenges the Legal-Services Claimant’s award because it 

included $157,500 in revenue that was based on “legal services performed by 

[its] legal fellows.” The Claimant valued its fellows’ work at $150 per hour and 

multiplied that by the number of hours worked over the year. BP contends this 

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award is inconsistent with the plain language of the Agreement, namely the 

terms “profit,” “earn,” “financial performance,” and “sales.” Most of BP’s 

textual arguments track BP’s general attack on the Nonprofit-Revenue 

Interpretation; revenue is used to calculate a claimant’s “actual profit” so that 

it can be compared to what the claimant “might have been expected to earn” 

during the post-spill period. See supra Part IV(A)(1). BP also points to Exhibit 

4C’s definition of the “Benchmark Period,” which is chosen by a claimant “as 

the baseline for measuring its historical financial performance.” Finally, BP 

argues that “if voluntary services are ‘revenue,’ it is difficult to discern why 

compensated services would also not be revenue.”

We are not persuaded. BP argues that donated legal services are not 

“revenue” because they “do not enter into” the profit calculation. As the LegalServices Claimant notes, certain donated services “requir[ing] specialized 

skills,” including legal services, are included as revenue on financial 

statements prepared under Generally Accepted Accounting Principles

(GAAP).15 Moreover, donated services affect the profit calculation because they 

free up organizations’ cash donations, allowing nonprofits to manage and 

allocate a greater pool of money. Additionally, these are “earned” within the 

Agreement for the same reasons discussed in Part IV(A)(1)(b), supra; 

nonprofits have to work to attract skilled professionals to donate their time 

just as they have to work to obtain cash donations.

15 See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 674 n.6 (2010) 

(“Under . . . general maritime law, evidence of ‘custom and usage’ is relevant to determining 

the parties’ intent when an express agreement is ambiguous.”); Allan B. Afterman, WG&L 

GAAP Practice Manual § 74.3.2 (2015) (“Contributions of services received . . . should be 

recognized only if they . . . [r]equire specialized skills, are provided by individuals having 

those skills, and would otherwise typically need to be purchased[.] Services requiring 

specialized skills would include those provided by . . . lawyers . . . .”).

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BP’s final argument—that if the donated legal services are revenue there 

is no reason why paid services would not also be revenue—obfuscates the 

crucial point that the legal services fall under the Non-Profit Interpretation 

precisely because they are donated. No party has suggested that non-profit 

organizations should be able to treat the services of paid employees as revenue;

by contrast, the Non-Profit Interpretation, which we uphold here today, 

specifically instructs nonprofits to include donations in their revenue 

calculations.

Moreover, BP has not provided, and we do not see, any meaningful 

reason to distinguish this type of donation from other donations received by 

nonprofits.16 Donated legal time is as valuable to the Legal-Services Claimant 

as a cash donation that would be used to pay for those services. And the loss of 

these in-kind donations would require the Claimant to divert cash from other 

operations to pay for the services instead. We therefore find no abuse of 

discretion in the district court’s denial of review of the award to the LegalServices Claimant.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the district court.

16 BP asserts that in contrast to “[a]rms-length commercial sales,” “voluntary 

donations of time have no readily discernible value, and are easily manipulated.” Considering 

that these services are assessed when nonprofits prepare financial statements, we are 

unpersuaded that this award creates serious problems for the settlement process. 

33

 

 Case: 13-31296 Document: 00513036479 Page: 33 Date Filed: 05/08/2015